Sudhakar v. The Inspector Of Police

Bail Slip Sudhakar, S/o.Raghavan, (sole Accused), is released on bail vide the order of this Court, dated 06.10.2016, made in Crl.M.P (MD).No.4335/2016 in Crl.A(MD).No.191/2016 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 03.11.2017 Pronounced on: 30.11.2017

CORAM:

THE HONOURABLE MR. JUSTICE R.SUBBIAH AND THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA Crl.A.[MD].No.191 of 2016 Sudhakar .. Appellant/Sole accused Vs.

State rep. by the Inspector of Police, Thattarmadam Police Station, Thoothukudii District.

(Crime No.160 of 2013) .. Respondent/Complaint PRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C. against the judgment, dated 28.03.2016, made in S.C.No.195 of 2014, by the learned Principal Sessions Court, Tuticorin District. For appellant : Mr.V.Kathirvelu, Senior counsel for Mr.S.Senthil Sankaranatha Kumar For respondent : Mr.C.Mayilvahana Rajendiran Additional Public Prosecutor, Assisted by Mr.A.Haja Mohideen

JUDGMENT

[Judgment of the Court was made by R.SUBBIAH, J.] This appeal has been filed by the appellant / sole accused as against the conviction and sentence, dated 28.03.2016, made in S.C.No.195 of 2014 by the learned Principal Sessions Judge, Tuticorin.

2.The appellant was convicted and sentenced to undergo

imprisonment as detailed hereunder:

Conviction U/s.

Sentence Fine amount 302 IPC To undergo imprisonment for life.

To pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for three months.

201 IPC To undergo rigorous imprisonment for one year To pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for three months.

3.The case of the prosecution is consciously narrated below: (a) The accused is the husband of the deceased by name Suriyagandhi. The marriage between the accused and the deceased was solemnized on 29.05.2013. On 07.07.2013 at about 5.30 p.m., the accused and the deceased went to a temple at Samithoppu, Nagercoil by a Maruthi van bearing registration No.TN-69-AY-3800 and the said vehicle was driven by the accused. While they were returning from the temple in the said vehicle at about 8.00 p.m. on Udankudi - Thisayanvilai Road near E.B. Office Bus stop, the said car dashed on the electric post.

PW1 - Village Administrative Officer, who was conversing with his uncle's sons Jeyaraj and one Murugesan near that place, on seeing the said accident, rushed towards the car. When they were nearing the car, the accused got down from the car and informed that the car met with an accident and his wife died due to accident. They went and saw the deceased. The deceased was in sitting position in the left side of the front seat of the car and there was an injury on the neck of the deceased. The accused, who got down from the vehicle, complaining of chest pain, went and stretched himself in lying position in a bus stop, which was nearer to the place of occurrence. PW1 called ambulance and took the accused to Sathankulam Government Hospital.

PW11 - Dr.Thamas Sevier Paulsingh, who gave treatment to the accused at Sathankulam Government Hospital, did not find any external injury and swelling on the body of the accused. But, the accused complained of pain over both upper limbs & abdomen. Ex.P11 is the Accident Register relating to the accused. Thereafter, PW1 went to Thattarmadam Police Station and gave a complaint - Ex.P1.

(b) PW18 - the then Sub Inspector of Police, on receipt of Ex.P1 - complaint from PW1, registered a case in Crime No.160 of 2013 under sections 279 and 304(A) IPC and forwarded the Ex.P1 - Complaint and FIR - Ex.P16 to the Court and to the higher officials. On receipt of Ex.P1 and Ex.P16, PW21 - the Inspector

of Police in-charge took up the case for investigation, went to the place of occurrence and prepared an observation mahazar - Ex.P2 and rough sketch - Ex.P21 in the presence of PW4 and one Subbaiah. PW21 recovered the bloodstained seat cover and sample seat cover from the car under a mahazar and examined PW3, PW4, one Subbaiah and Arasamuthu, etc. and recorded their statement. Then, PW21 conducted inquest on the body of the deceased and forwarded the body to the hospital for postmortem.

(c) In the meantime, on getting information about the accident on 07.07.2013 at 8.30 p.m., PW2, who is the father of the deceased, came to the accident spot and found the accused lying dead with a deep cut injury on the right side neck in sitting position in the front left side seat of the car. Though it is stated that due to accident, the broken pieces of the windshield glass of the car cut the neck of the deceased, PW2 saw that the front windshield glass of the car was not shattered and there was only cracks in the front windshield glass. Hence, PW2 raised a suspicion over the said incident to the Inspector of Police. (d) PW21 handed over the investigation to the regular Inspector of Police - PW19.

On taking over the investigation, PW19 asked PW10 - the Assistant Director, Regional Forensic Science Lab, Tirunelveli to conduct an examination with regard to the "Scene of Occurrence". After conducting examination, PW10 - the Assistant Director opined that the damages in the vehicle were logically not enough to cause such grievous injury on the neck of the victim. PW19, during the course of investigation, enquired PW10 and other witnesses and recorded their statements. (e) PW11- Dr.Thamas Sevier Paulsingh had conducted postmortem on the dead body of the deceased on 08.07.2013 at 01.30 p.m. He found the following injuries on the dead body of the deceased: "External injury: A deep cut injury of 10 x 6 cm is present in right side neck depth extending upto C4 vertebral level. Direction of wound is turn right to left.

External jagular vein, carotid artery & trachea were cut."

Ex.P13 is the postmortem certificate. He opined that the deceased would appear to have died of shock & haemorrhage due to cut injury on the throat.

(f) PW19, after getting opinion from PW11 - Postmortem doctor and PW10 - the Assistant Director of Forensic Department, on 08.07.2013 at 5.00 p.m. arrested the accused at Thachan Mozhi Busstop in the presence of PW8. On such arrest, the accused gave a voluntary confession in the presence of witnesses, in which he disclosed the place where he had concealed the knife. The admissible portion of the confession statement is marked as Ex.P18. In pursuance of the said disclosure statement, he took the Police and witnesses to the place of hide out and produced the

knife (MO.4). PW19 recovered the same under a mahazar. On returning to the Police Station, he forwarded the accused to the Court for judicial remand and handed over the material objects under Form 95 to the Court. At this request, the material objects were sent for chemical examination by the Court. The forensic report revealed that there was human blood on all the material objects, including in the knife recovered from the accused. (g) Due to transfer, PW19 handed over the investigation to his successor - PW20. On 27.08.2013, PW20 took up the investigation and enquired the doctors, forensic expert and other witnesses, including the Motor Vehicle Inspector and recorded their statements. Thereafter, he altered the offences in the FIR into under Sections 302, 201 and 498(A) IPC and forwarded the alteration report - Ex.P20 to the Court.

After completion of investigation, he laid charge sheet against the accused 4.Based on the above materials, the trial Court had framed two charges one under Section 302 IPC and another one under Section 201 IPC, against the accused. When the accused was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, on the side of the the prosecution, as many as 21 witnesses were examined as PW1 to PW21 and Exs.P1 to P23 were marked, besides eleven Material Objects as MOs.1 to 11.

5. When the accused was questioned under Section 313 of Cr.P.C. with reference to the incriminating materials adduced by the prosecution, the accused denied his complicity in the crime and pleaded innocence. However, on the side of the accused, no one was examined and no document was marked.

6.The trial Court, after considering the oral and documentary evidence, has found the accused guilty of both the charges under Sections 302 and 201 IPC and accordingly, convicted and sentenced the accused, as stated supra. Challenging the said conviction and sentence, the appellant/accused has come up with this appeal.

7. The learned senior counsel for the appellant / accused mainly contended that initially it is the case of the prosecution that on 07.07.2013 while the accused along with the deceased were returning from the temple in a Maruthi car bearing Registration No.TN-69-AY-3800, the said car met with an accident, due to which the deceased died on the spot. But, it is submitted that due to the suspicion raised by PW2 - the father of the deceased, who reached the place of occurrence at 9.30 p.m., the Inspector of Police has altered the offences. However, PW2 has stated in his evidence that after seeing the body of the deceased, he along with his wife returned to his house. This conduct of PW2 is unnatural. Further, PW2 was not examined on the same day. He was examined on the next day ie., on 08.07.2013. The said factor clearly shows that after consultation and discussion, this false case has been

foisted against this appellant/accused.

8. The learned senior counsel for the appellant would further submit that though PW5 claims to be an eyewitness for the accused cutting the neck of the deceased near EB Office, Naduvakurichi, PW5 has admitted in his cross examination that he went to the respondent Police Station before giving evidence in the Court and the respondent Police trained him as to how he should give evidence before the Court, which clearly shows that he is a cooked up witness and he is not a trustworthy witness. Similarly, PW6 was also examined before the trial Court to corroborate the facts stated by PW5, But, PW6 has turned hostile. Therefore, the conviction and sentence imposed by the trial Court relying upon their evidences are liable to be set aside.

9. The learned senior counsel for the appellant / accused would further submit that Section 161 (3) Cr.P.C. statements of PWs.5 and 6 reached the Court very belatedly and the same is not explained by the prosecution, which further strengthened the doubt with regard to the reliability of the evidences of PW5 and PW6. 10.The learned senior counsel for the appellant / accused would further submit that the size of the injury did not tally with the width of the weapon. The cutting portion of the weapon is at the most 0.5 c.m. width, but the width of the injury on the deceased is 6 c.m., which would go to show that the injury sustained by the deceased is only an accidental injury and not a cut injury as alleged by the prosecution. Thus, he prayed to allow the appeal and set aside the conviction and sentence

11. Per contra, the learned Additional Public Prosecutor submitted that in this case, PW1 has stated about the presence of the accused and the deceased in the car, after the car met with the accident. PW2 has stated about the motive for the occurrence and also raised suspicion over the death of the deceased. The eyewitnesses PW5 has categorically stated in his evidence that the appellant / accused slit the throat of the deceased in the car. Though PW6 has turned hostile due to delay of seven months in cross examining him, PW6 has categorically stated in the chief examination that the accused has cut the deceased. The medical evidences have also corroborated the same. Based on these evidences, the prosecution has clearly proved the case of the prosecution beyond reasonable doubt.

More over, the death of the victim has occurred inside the car and that the appellant was the only person along with the deceased and a burden is cast upon the appellant to explain the cause of death which he has failed to discharge thereby creating an inference that the appellant is responsible for the death of the victim. Under such circumstances, no infirmity can be found on the conviction and sentence passed by the trial Court. Thus, he prayed for dismissal of the appeal.

12. We have given our anxious considerations to the rival submissions made on either side and perused the materials available on record.

13. According to the prosecution, it is a homicidal case. According to the accused, it is an accidental case. The trial Court has come to the conclusion that it is a case of homicidal. Now, let us analyse the submissions of the learned counsel for the appellant/accused.

14. The first and foremost submission of the learned senior counsel for the appellant is that though PW2 along with his wife came to the place of occurrence and raised suspicion over the incident to the Inspector of Police, his statement was not recorded on the same day and the act of PW2 returning to the house after he came to the accident place, would go to show that after consultation and discussion, this false case has been foisted against this appellant/accused. PW2 has stated in his evidence that after getting information from the father of the accused on 07.07.2013 at 8.30 p.m. he along with his wife came to the spot at 9.30 p.m. and at that time, there was heavy crowd and that even before the arrival of the Police, they came to the spot.

PW2 has further stated in his cross examination that since his wife was weeping, he along with his wife returned to the village. It is seen from the record that PW2 was aged about 70 years at the time of giving evidence on 17.06.2015. At the time of occurrence ie. on 07.07.2013, he was about 68 years. Considering the age of PW2 and his wife, and also considering the time of occurrence, this Court is of the view that the act of PW2 cannot be stated to be artificial.

15. In fact, PW2 has further stated in his cross examination that on the date of occurrence, he did not see the Police and that on the next day morning, the Police enquired him and at that time, he raised suspicion over the incident. PW21 - Inspector of Police In-charge has stated in his evidence that on receipt of Ex.P1 and Ex.P16 - FIR, he rushed to the spot at 10.15 a.m., prepared an observation mahazar and rough sketch and then, he conducted inquest and forwarded the dead body to the hospital for postmortem. PW21 has further stated that in the early morning on 08.07.2013, he enquired the witnesses and recorded their statements. Though PW21 and PW2 were cross examined at length, the defence could not bring anything in their favour.

Considering the time of occurrence and also considering the time at which the criminal prosecution was set in motion, this Court is of the view that it could not be possible for consultation and discussion with regard to the registration of false case against the appellant/accused.

forensic report. Therefore, the conspiracy alleged by the accused cannot be accepted.

16. The next submission of the learned counsel for the appellant / accused is that PW5 is a cooked up witness. PW5 has stated in his evidence that on 07.07.2013 at 8.00 p.m. when he was standing in the E.B.Office bus stop, about 10 to 15 feet an omni van was stationed, from which he heard a hue and cry and when he went there, he saw the person who drove the vehicle was slitting the neck of the deceased by holding her hair. PW5 has further stated that in that car, the said lady and driver alone were there and the person, who drove the vehicle is the accused. But, PW5 has fairly admitted in the cross examination that he went to the Police Station the day before the date of giving evidence and that the Police informed him as to what he should say before the Court.

However, in the cross examination, PW5 denied the suggestion put forth by the defence that he did not see the occurrence. Further, PW5 has categorically stated in the chief examination as well as in the cross examination that he knew the face of the accused, but he did not know about the name and village of the accused. PW5 is an aged man and an independent witness and there is no necessity for him to give any false evidence against the accused. Further, the occurrence took place on 07.07.2013 and the evidence was recorded on 17.06.2015 ie., nearly two years after the occurrence. Except the above said admission, there is no flaw in the evidence of PW5. In view of the above, this Court is of the view that the evidence of PW5 is partly believable.

17. So far as the evidence of PW6 is concerned, though he has stated in his evidence that on 07.07.2013 at 8.00 p.m. when he was coming towards Thisayan Villai from Udankudi, he saw an omni van bearing Registration No.TN-69-AY-3800 and at that time, he heard the hue and cry of a woman from the said car and when he went there, the person who was in the driver seat was slitting the neck of the deceased. On seeing him, the accused hurriedly drove the car. PW6 has stated that he did not see the person who was in the car. After seven months, when PW6 was further cross examined by the defence, he turned hostile, which would go to show that something might have been happened in the intermittent period. While in the chief examination and cross examination of the defence held on 17.06.

2015, PW6 has categorically stated that when he heard the hue and cry of a woman from the Maruthi car, he went there and at that time, the person, who was in the driver seat, was slitting the neck of the deceased, during the cross examination of the prosecution, PW6 has stated that he could not remember what he said before the Police. Considering the entire evidences of PW6, this Court is of the view that the evidence of PW6 is also partly believable.

18. The next submission of the learned counsel for the appellant is that the statement of PW5 and PW6 recorded under

Section 161(3) were forwarded to the Court very belatedly and the same was not explained by the prosecution. It is seen from the record that the defence has failed to put to any question with regard to the same to the investigating officer. When the chance of giving any explanation for the delay has not been given to the prosecution, now the defence cannot gain any advantage therefrom. Mere delay in sending 161 statements to the Court cannot ipso facto make the evidence of the eyewitnesses suspect. In this regard, this Court is of the view that it would be appropriate to refer to the decision of a Division Bench of this Court in D.Sudhakar and others Vs. State of Tamil Nadu reported in 2014(2) LW (Crl.) 205, wherein at paragraph No.23 it has been held as follows:

"23. The learned Senior Counsel for the appellants submitted that the statements of the witnesses had reached the Court only on 27.12.2010 and therefore, the evidence of these witnesses become suspect. We are unable to countenance this argument, because mere delay by the police in not sending the 161 statement to the Court cannot lead to any inference that the witnesses are not trustworthy. In fact, in Raman and Yadav vs. Prabhunath Jha [2004 MLJ Crl. 284 SC] even while dealing with the delay in recording the 161 statement of witnesses, the Supreme Court has said that unless the Investigating Officer is categorically asked as to why there was a delay in examination of the witnesses, the defence cannot gain any advantage therefrom. When that is the legal position, even with regard to the delay in recording the statement of witnesses, mere delay in sending the 161 statements to the Court cannot ipso facto make the evidence of the eye witnesses suspect."

19. As the evidences of eyewitnesses viz., PW5 and PW6 are partly believable, now let us look into the circumstantial evidences to decide as to whether the prosecution has proved the guilt of the accused.

20. In this case, except the evidences of PW5 and PW6, the prosecution has examined PW1, who saw the occurrence of the accident. PW1 has stated in his evidence that when he was conversing along with his cousins one Jeyaraj and Murugesan on the Thisayan Vilai to Udankdi Road at Kanniamman Temple, the vehicle bearing Registration No.TN-69-AY-3800, which was coming towards east from west, slightly dashed against a electric pole and when they went there, the accused came out of the vehicle, informed that the car met with an accident and that due to accident, his wife died. PW1 has further stated that the deceased was in sitting position on the left side front seat of the car and there was an

injury on the neck of the deceased and her head was leaning towards right side downward position, and that since the accused complained of chest pain, he took the accused to Sathankulam Government Hospital through ambulance.

21. From the evidence of PW1, it is clear that the accused and the deceased alone were in the car. It is also clear that the deceased was in sitting position in the front left side seat of the omni van and her head was leaning towards right side downward position with a cut injury on the neck. PW2 and PW3 also corroborated the same.

22. PW11 - Dr.Thamas Xavier Paulsing, who conducted postmortem, has stated in his evidence that he found a deep cut injury of 10 x 6 cm depth on the right side neck extending upto C4 vertebral level and that the external jagular vein, carotid artery and trachea were cut. PW11 has opined that the deceased would appear to have died of shock and haemorrage due to cut injury on the throat. Before sending the dead body for postmortem, on 08.07.2013 at 1.10 p.m., PW10 - the Assistant Director of Regional Forensic Lab, Tirunelveli, has conducted an examination of Scene of Occurrence and found a deep incised wound at the top of right neck below right mandible with no foreign bodies or fragments adhering in and around the wound. PW10 has further stated that he has not found any other injury on the dead body of the deceased. From the above evidences, it is clear that there was only one injury ie., a cut injury on the throat, on the dead body of the deceased and the same caused her death.

23. After examining the vehicle involved in this case, PW10 - The Assistant Director of the Forensic Department has stated that the wind screen of the vehicle was seen fragmented with more fragmentations - "dices" towards left side of wind screen without shattering of glass. PW10 has opined that the damages in the vehicle were logically not enough to cause such grievous injury on the neck of the victim. After inspecting the vehicle, PW12 - Motor Vehicle Inspector has found the front wind screen glass in left portion broken like an irregular line and there was no shattering of glass. Further, PW12 gave opinion that the accident has not due to mechanical defect of the vehicle. From the evidences of PW10 and PW11, it is clear that the accident was not occurred due to mechanical defect and that the injury on the deceased is not possible due to accident.

24. The accused in his 313 Cr.P.C. statement gave an explanation that the deceased died due to shattering of broken glass and the frame attached to the same on the neck of the deceased. But, admittedly, there was no shattering of wind screen glass and there were only broken an irregular line on the wind screen glass. In fact, a bare perusal of the photographs taken immediately after the accident would go to show that the front

wind screen glass of the car was not shattered, but there were only cracks on the screen glass. There was also no damage to the frame of the wind screen glass. Even assuming that the frame of the shattered wind screen glass slit the neck of the deceased, not even a single piece of wind screen glass was stated to have been detected in the body of the deceased. Further, the vehicle did not hit at a greater speed against the pole and there was damage to the vehicle only in the left side bumper and frame of vehicle, left hand light and indicator lamp. There was also no sharp edged broken metallic object found separated from the body of the car. Thus, it is proved that the explanation offered by the accused i.e., in the accident the sharp edged broken metallic object pierced the neck of the deceased is not true.

25. PW11, who conducted postmortem, has stated that the injury found on the deceased could have been caused by a knife like MO.4, which has been recovered from the accused on the basis of his confession statement. PW8, who is the witness for the confession statement of the accused and recovery of MO.4, has stated in his evidence that MO.4 was recovered from the hide out only at the instance of accused after recording his confession statement. As per the forensic reports - Ex.P8 and P9, there was bloodstain on MO.4. More over, PW16 has stated in his evidence that on 07.07.2013 at 6 to 6.15 p.m. he saw the accused purchasing a knife from an utensil shop. From the above evidences of PW10, PW11, PW16 and recovery of MO.4, the prosecution has proved that it was this accused who caused the injury on the deceased by using MO.4 - knife.

26. Though the learned counsel appearing for the appellant submitted that the size of the injury and the width of the weapon differs, the defence has failed to put any question, in this regard, to PW11 and as such, there was no chance for giving any explanation by the prosecution. Even for the statement made by PW11 that there is every possibility of the injury on the deceased by MO.4, the defence has failed to contradict the same. More over, the possibility of widening the injury by the knife has not been ruled out.

27. With regard to the motive for the occurrence, PW2 has stated in his evidence that after 15 days of the marriage, the deceased came to his house and informed him that the accused suspected her fidelity whenever she uses the phone of the accused. PW2 has further stated that he pacified the deceased assuring that he will buy a cell phone for her. In the confession statement, the accused has stated that he was having a love affair with his uncle's daughter and that for sending the deceased out of the matrimonial home and to marry his uncle's daughter, initially he has been harassing the deceased by suspecting her fidelity and since the deceased did not leave him, he planned to kill the deceased. More over, on the side of the accused, it has not been

established that the accused along with the deceased lived happily and that there was no difference of opinion between them. From the above statements, the prosecution has proved that there was a motive for the occurrence.

28. More over, PW1 and PW3 have stated in their evidences that they rushed to the spot immediately after the accident and that the accused came out of the vehicle and informed that the deceased died due to an accident. The said act of the accused creates doubt in the mind of the Court, as in the normal course of action, every one would have made some attempts, like, raising a hue and cry, stopping the profused bleeding which emanated from the body of the injured, etc. in order to save the injured.

29. It is stated by PW1, PW2 and PW3 that after the accident, the accused was in a sitting position in the front left side of the car and her head was leaning towards right side downward position. It is not the defence of the accused that the deceased was wearing seat belt at the time of the accident. When a car is involved in a collision, the seated occupants of a car will hit whatever is in front of them and their forehead would hit on the wind screen, which would lead to head injury. In this case, the deceased has sustained only a deep cut injury on the neck. But, there was no injury on the head of the deceased. Even a lacerated injury was not found on the other parts of the body of the deceased. The accused, who drove the vehicle, did not sustain any injury.

When that be so, the possibility of the occurrence as projected by the prosecution cannot be ruled out. 30.The above circumstantial evidences completely form a chain of circumstances incriminating against the accused. 31.

"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations :

a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him."

32. The applicability of the above provision has been explained by the Hon'ble Supreme Court in State of Rajasthan vs. Kashi Ram, reported in (2006) 12 SCC 254, in paragraph Nos.23 and 24 as follows:

"23. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act.

In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. AIR 1960 Mad 218.

24. There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act.

This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."

33. Admittedly, in this case, the accused and the deceased alone travelled in the car. The accident did not occur due to over speed But, the deceased died on the spot due to a deep cut injury

on the neck. The accused, who was conscious immediately after the accident and did not sustain any injury, would have definite knowledge about the said injury caused to the deceased. The explanation given by the accused with the regard to the said cut injury has been proved to be false. Since the accused has failed to offer any probable and satisfactory explanation on the basis of the facts within his knowledge, it is to be construed that he failed to discharge the burden cast upon him under Section 106 of the Indian Evidence Act. As the accused has failed to offer a reasonable and plausible explanation in discharge of his burden placed on him, that itself provides an additional link in the chain of circumstances against him.

34. As stated earlier, the evidences of the eyewitnesses viz., PW5 and PW6 lent a less support to the case of the prosecution. Even assuming that the evidences of the eyewitnesses PW5 and PW6 did not support the case of the prosecution, the prosecution through the chain of circumstances i.e., (a) the accused and the deceased alone were travelled in the car; (b) the single cut injury on the deceased is not an accidental one; (c) the single cut injury on the deceased is a homicidal one; (d) the explanation given by the accused ie.

due to accident, the sharp edged broken metallic object pierced the neck of the deceased, is not true; (e) the recovery of bloodstained knife - MO4 from the accused based on his confession statement; (f) the motive for the occurrence; (g) the conduct of the accused; (h) the possibility of the injury caused by the accused, etc. established that, in all probability, the act of committing homicide and screening the offence by making it an accidental case must have been done by the accused. All the circumstances have been clearly discussed by the trial Court and it rightly convicted the accused and awarded appropriate sentences. We do not find any reason to interfere with the same.

35. In the result, this criminal appeal is dismissed; the conviction and sentence passed by the trial Court against the appellant/accused in S.C.No.195 of 2014 are confirmed. Bail bond executed by the appellant / accused shall stand cancelled. The period of sentence already undergone by the accused shall be given set off under Section 428 of the Code of Criminal Procedure. The Trial Court shall take steps to secure the appellant / accused to commit him in prison so as to serve out the remaining period of sentence.

Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar

To

1. The Principal Sessions Judge, Tuticorin District.

2. The Judicial Magistrate, Sathankulam.

3. The Chief Judicial Magistrate, Tuticorin District.

4. The Inspector of Police, Thattarmadam Police Station, Thoothukudii District.

5. The Superintendent, Central Prison, Palayamkottai.

6. The District Collector, Tuticorin.

7. The Director General of Police, Mylapore, Chennai-4.

8. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

9. The Record Keeper, Criminal Section, Madurai Bench of Madras High Court, Madurai.

+ 1 cc TO Mr.A.Haja Mohideen , Advocate in SR No. 90434 gcg AE/SV MMS/SAR4/14.12.2017/14P/11C Judgment made in Crl.A.[MD].No.191 of 2016 Dated: 30.11.2017